ADR checklist

Conflict Resolution Modalities & Conflict resolution procedures
PURPOSE The purpose of this page is to provide a checklist for careful handling of conflicts and a tool to offer the most promising modality.
SCOPE This checklist is used by magistrates, HR departments, managers and governing bodies. The scope extends to all conflicts, all jurisdictions & stakeholders.
AUTHOR Michael Boelrijk LL.D. MA is connected to Empathy.n Law, Mediation & complaint counseling. He practice as a Certified Court Mediator, including court-connected mediation and is chairman of complaint committees. He is author of publications and textbooks on complaint mediation and counseling. This overview comes from a translation of his book: Mediation als alternatief, Handreiking voor Hulp- en dienstverleners Houten: BSL 2001 ISBN 903133636X & 2nd edition 2010 ISBN 9789031377664. The checklist is an abstract from his textbook: Referrals for mediation. Reference guide for (legal) services to facilitator, mediator, arbitrator, arbitration committee or court complaints Amstelveen: ActUmail 2005 ISBN 9789078470014 Series: Methodical skills for professionals © Empathy .n Law
Order English Publications online via Actumail Media Mediation as Alternative 2014 ISBN 9789078470045 & Mediation as Appropriate 2015 ISBN 9789078470007 Usage tips: Composer(s) and publisher are fully aware of their task of ensuring optimum care. However, they can not accept responsibility for errors that may occur in this edition. Correspondence relating to acquisition of (a) part(s) of this publication in anthologies, readers and other compilations or reproduction to: Actumail.nl; POBox 113; 1180AC Amstelveen; Netherlands. All rights reserved. No part of this production may be reproduced, stored in a retrieval system, or Transmitted in any form by any Means, electronic, mechanical, photo copying, recording or other wise, without permission of the publisher. Unauthorized reproduction or distribution of this or part thereof is prohibited.

INTRODUCTION
Misunderstandings, frictions, a bad atmosphere at work, bullying, fighting, intimidation, tribalism or any other problems between people. Do you recognize them, employees, colleagues or clients who wish to submit a petition or complaint, ill sit at home or at risk of drop-outs by a conflict? For many executives, employees, HRM managers, council members, social, medical teams, company doctors, union officials, counselors, social workers and corporate officers complaint is a familiar situation. The sparks fly on whether one looks at each other anymore. There are others turned to the problem: colleagues, managers, arbitrators, lawyers or judges. If you want someone to help with his problem, you should consider putting together to find the most attractive solution modality.
There are always miscommunications between people and organizations and if the parties do not resolve, a conflict is born. Normally you enter negotiations without hasten one third off. If someone wants to achieve something or want to make an end of an undesirable situation the first way is to negotiate among themselves to reach a solution. However, there is a dispute where parties do not come true, than the negotiation in this situation failed. The parties did have the intention to get out, but it did not work: a dispute is over arised. A conflict is a problem of communication between people that often they themselves no longer believe they can be solved. In those cases it is advisable to activate third parties who mediate. Parties often ask automatically to the third party to examine the content of the dispute. They go to a legal adviser. People forget that with a little help from a mediator there is still a good change the content of the dispute will be resolved.
Characteristic of negotiating in mediation is that parties to a dispute are willing and able to come out themselves and not wishes to give the solution to a third party. Mediation is nothing more than negotiate all the separate interests of all parties in a dispute. The parties to the dispute itself conduct the negotiations. Mediation therefore provides the advantage that parties can pursue their own solutions that they themselves own and find a way out of trouble when they got caught and do not depend on the judgment of a third party. Parties in mediation remain, or again become, the owner of their dispute.
A pointer can provide active support by the parties to resolve their dispute. A counselor can assist an employee. Such active support consists for example of practical tips for how to act, what an employee can and should never say to avoid redundancy. Even with an employee to another party and steps that together on a solution in conversation is a method. The counselor may also suggest a mediation and thus to initiate an independent and unbiased, external third radar.
This is often an attractive option compared to going to court. This mediator, should in any case be independent in the eyes of the parties. Has anyone quarrel with his colleagues then perhaps a colleague or team can act as a facilitator. But if this mediator is making friends with the fellow in the dispute, he often is not considered as an acceptable neutral mediator. It is advisable to choose another mediator or an external mediator to turn to.
In summary, therefore means that people with this dispute independently analyze, negotiate together on a solution or a third party can turn to that will mediate, acting as a mediator or making a decision. Solution to all these arrangements have advantages. In this checklist we discuss the advantages and disadvantages of the different solution methods and give a questionnaire to various parties in a dispute. This checklist is intended primarily for the thinking of staff workers who want to give a professional reference. We consecutively discuss solution procedures, conflict solvers and referral dynamics. The purpose of this questionnaire is to provide a balanced decision about which solution best meets the dynamics to achieve as many interests as possible in different situations, emotions and conflict phases. The questionnaire is divided into questions to the referrer, the organization, the manager, a mediator, the parties and questions for lawyers. We conclude the checklist of questions about creative solutions and a fixed-term solution modality.

Solution Methods
Mediation
Mediation includes all activities aimed at a dispute between two or more parties to resolve with the help of a third. Essential for mediation is that parties have the will to resolve the dispute themselves. They have got that choice. A specific form of mediation is in which a standard is used primarily for disputes with an interest towards a legal dimension. In the development of mediation, we see that the emphasis is on disputes that are so far developed that the parties do not get out and others seems to make decisions. In simple disputes, mediation can offer relief also.
The core of the definition of mediation is that it is a method whereby a third party tries to bring an acceptable solution. The content of the dispute belongs to the parties themselves, they are the owners of the dispute. Mediation always is about a dispute between two or more parties going on. If two colleagues have a disagreement, a other colleague might try to act as mediator. But even in disputes between an individual employer and employee, it makes sense that the conflict does not escalate and preferable should be resolve through conciliation or mediation. The same can be said of such differences of opinion between a consumer and the supplier or between a patient and the provider.
The mediator does not stipulate standard procedural rules. A mediator will not put any pressure on parties. The mediator guides the process of negotiating towards a settlement of the dispute. The mediator can choose from a wide range of techniques for all conceivable variations, ranging from parties to negotiate as much as possible or to hear each party separately and later have joint meeting or no investment at all by the mediator. Also a mediator can suggest compromises.
It may happen that the parties in mediation in good spirits and accept that one of them drop out before a solution is reached. Dropping off during the mediation occurs and can have various causes. If a party feels no (any longer) equivalent to the other then the confidence in the mediation disappear. That is also the case if a party believes that mediation yields less than going to court. It may be that parties decide to prematurely terminate the mediation because they feel that others do not respect them and not see them as a serious interlocutor. If people think they are not respected, it is often a motive to turn to a judge to help the “underdog”. Nowadays incidentally the judge can persuade parties to find a solution for the dispute through mediation.
The autonomy of parties is paramount and any suggestion to resolve the dispute, let alone pressure, contradicts the concept of mediation and the role of the mediator. The choice of mediation boils down to whether one wishes only that the mediator acts as moderator and thus facilitates the solution modality or that a mediator also substantively address the discussion points and evaluates the conflict. If it goes wrong in the process between parties (they misunderstand each or they get into a fight) then the mediator who will be the discussion leader who did not have interfered with the content has more authority to smoothen the conversation. If a third party non-mediator has had an active role of the substance of the conflict or the solution has interfered, mediation can still be an effective modality solution and a good alternative to going to court.

Mediation
In essence, mediation means that a mediator focuses almost exclusively on the process of negotiation and that he does this in a structured way according to defined procedural rules. The mediation is aimed at the interests of the parties and not the positions that parties have taken. The mediator assesses never substantive positions or opportunities of the parties. Mediation does not negotiate a compromise. A compromise is in fact totally nothing; an elephant with a giraffe-neck. The mediator manipulate that negotiations will be on all interests of all parties. The creative element of mediation lies in finding solutions for all interests, without thereby compromising other interests. To deny the interests of those directly involved but also interests of third parties such as the employer is a waste of time, which means in fact working towards a settlement with a shelf life up to the door.
During mediation may be based on the recognition of interests and forth playing creative solutions come into view. An effective mediation has an eye for all interests. The result should thus both include solutions for the needs of those directly involved, as for the interests of management which also include interests of “mandatory rules”, operations and marketing strategies of influence.

Mediation Agreement

For the sake of legal guarantees voluntary informality and confidentiality an agreement on how parties interact in the mediation is necessary. The first thing a mediator must do is to come to some kind of mediation agreement with the parties. Here are portions of the contents of that mediation agreement as a guarantee of a legitimate solution modality.

1. Course of events:

1.1 The mediator and parties will make proper efforts to lead the mediation to a successful conclusion.

1.2 These rules also apply for others participate in the mediation. The Mediator may with the consent of parties allow others in the Mediation process.

1.3 The mediator and the parties are in person or duly represented at each mediation meeting. If necessary, a written power of attorney be submitted to the mediator and the other parties.

1.4 All court proceedings concerning the dispute will be suspended, and there will be no new ones started. Parties inform each other and the mediator about all proceedings at the beginning of the mediation.

2. Course of events: VOLUNTARY

2.1 Parties do voluntarily participate in the mediation. The mediator or either party may at any time cease the mediation.

2.2 The parties declare their readiness to act towards the Mediator and to one another to refrain from actions or conduct that might seriously complicate the mediation or impede each other’s arguments and are willing to listen and find solutions.

3. Appointments: BINDING

3.1 The parties may freely do during the mediation oral and written proposals, without obligation interests on the table without thereby be committed. Only written agreements, signed by both parties, can bring new obligations.

3.2 If the mediation ends with an agreement the result will be properly recorded. The mediator shall provide parties with the necessary information about the nature of the agreements.

3.3 Parties grant each other in each case a period of reflection before they express their commitment to the agreement.

4. Course of events: CONFIDENTIAL

4.1 The mediation is confidential, unless the mediator and parties agree in writing otherwise. Anyone who fully or partially is present at mediation is obliged to maintain confidentiality.

4.2 If under legal obligations of confidentiality of the mediation or only partially possible, these issues which between the mediator and individual parties agreed, will be annexed to this agreement.

4.3 If the costs of mediation by a client who is not a party be reimbursed, this does not imply that that will affect and may be on the impartiality of the mediator, nor that this communication does to the client about the content of which during the mediation is discussed, other than general information about the progress of the mediation and / or the anticipated duration.

4.4 The mediator, the parties agree to meet principal and not as a witness to call on the mediation and its course. Parties commit themselves explicitly to the mediator that he wiil not as a witness or otherwise hear or be heard.

4.5 The agreements on confidentiality are also binding to their representatives of the parties (including also a lawyer and / or attorney).

4.6 In the event the parties fail to reach full agreement, they agree at the closing meeting with each other if the procedure will be continued and if so, what facts or information from the mediation, there may be introduced. This is preferably recorded in writing. In the absence of such written record anything discussed in mediation is confidential, except for the facts and data without mediation were known.

4.7 If the parties to complete mediation agreement, they discuss during the final meeting with each other if and how the progress and outcome of the mediation will be advertised externally and which facts and events are public.

Duration mediation

Since experience shows that the probability of success decreases with longer duration of mediation as a guideline will apply in complex conflicts by day 90 the final assessment of the mediation takes place through the signing of the settlement or the common conclusion that mediation in this stage of this particular dispute is not the most adequate solution modality. In most conflicts is a much shorter turnaround time also desirable. It is therefore the energy of a good conversation to exploit soon after a follow up to keep.

Although it is not good to give an abstract framework for concrete cases according to several studies that dispute the average number of contact should be limited to a maximum of twenty. If this number is exceeded, there is a risk that the mediation for other purposes (for example, therapy, or for time) is used. The strength of mediation is in fact within the foreseeable future and the investment itself resolving power of the parties to guide and encourage. A good mediator needs quit often much less contact hours needed to assist parties in finding a solution.

Planning Mediation

To avoid human conflict mediation coordinator solicitation to recourse in or planning to use for improper purposes, the mediation coordinator contacts with parties strictly limited to an inventory of preferred interview dates. More flexibility in planning entice parties to manipulate the start to the actual mediation meetings. It is our opinion therefore exceptionally to request separate days with the introduction mediator planning to add. In principle it is better to have the acquaintance – if necessary with the parties separately – to take place after the start of the actual mediation. This will prevent the mediator loads the great suspicion on himself that “everything with the other party has concocted.”

©VoorzieningenMediation Arrangements Mediation

Parties in commercial affairs most time are looking for solutions based on economic grounds. Commercial emotions sometimes play a less prominent role. The format of the so-called one-day mediation is thereby interesting. In interlocutory Business a marathon session is to consider. Indeed there is an urgent interest, there may be parties to a greater investment and so commitment are expected. Some think that the so-called “pressure cooker” method is the best service. This methodology involves the continuous mediation until the mediator draws a conclusion about the mediation. Empathy developed the so-called arrangementsMediation which services that profitable process for parties who have an urgent interest in conflict resolution and want to stay in control of the solution.This particular format is successful if it meets two conditions, namely a large commitment of stakeholders and special capacities of the mediator.

Cost-effective solutions

It is primarily useful to the settlement in a fixed but reasonable cooling off period to implement. This provision could read: “The employer is liable to the other parties of settlement subject to the provisions of this settlement if the authority were embedded decision within four weeks has been destroyed.” Contracting Parties are thus aware of the importance that an agreed solution even within the doctrine of mandate and delegation must be defensible. Secondly, in relation to foreseeable discussions about third operation and confidentiality are well into the settlement to determine how the solution is communicated externally. It is also useful to agree whether or not the court will still be asked to rule on a clearly framed juridical quest. If the outcome of the mediation is that Employer and employee come to the conclusion that it is better to finish the employment relationship, it may indeed be important for a judge to implement this agreement in a verdict to safeguard the social welfare rights.

Arbitration

Arbitration is a regulated form of assessment by a third party who is considered a subject expert. Parties are free to dispute their decision whether or not to submit to an arbitrator and who they will appoint as arbitrator. This solution modality is staffed by an ombudsman, an arbitration committee or a complaints committee. Also objected especially in administrative procedures are common. When opting for the formal format of arbitration, parties have to declare that they will accept and respect the decision of the arbitrator. In many cases, an arbitration ended with the capture of a settlement in the arbitration award on the basis of Article 1069 of the Dutch Code of Civil Procedure. Arbitration is not focused on the process between the two parties in dispute, the arbitrator leans only on the content and makes a statement about that.

If we take the schematic form of dispute resolution display creates an image of the differences (see Table 1).

Negotiate Mediation intervention Arbitration Justice
Focus on process – / + + + + / –
Mutual trust + + + + +
Future + + + + +
Cost Low middle low High high
Voluntarily Yes yes yes no no
Third no yes yes Yes yes
Solution dispute uncertain uncertain uncertain Yes yes
Formal No no no Yes Yes
Legal Guarantees No yes no Yes Yes
Disposal appointment agreement advice Judgment Judgment
Result Voting Agreementprotection creative solution compromise uncompromising results enforced result

Table 1. Forms of dispute resolution

Justice
If a dispute is submitted to the court the parties are only interested in a third suggested content – often uncompromising – solution. The contents of the twist and the relationship between the parties are irrelevant and are subordinated to the conflict and the right feeling. When justice is the label that the conflict is decisive for the court to note bends. Judiciary in the Netherlands is divided in different forums. In the Netherlands we know as the main public areas of Administrative, Criminal and Tax Law. The private sectors are manned by judges in the Enterprise, Family, Short proceedings or Facilities Room and at the Cantonal Courts. In employment law and landlord and tenant judgment is noted by a single magistrate. Business Services are characterized by two elements. Firstly, there must be an urgent interest to the matter at very short notice to deal with. Secondly there will often be a deadline for the underlying claim. Moreover, it is also good to realize that a judge only marginally assesses the content, he works towards a temporary solution in the practice of law if years later in a really substantive merits will be assessed.

The schedule in Table 1 can be helpful in finding the solution to parties’ preferred modality. The trade off is always a mixture of various ingredients. Parties only want to restore the relationship and they seek a form of good communication or are looking for a substantive solution, or parties find it important to restore confidence between them and to keep an eye on a future together?

Sometimes a simple advice or an inducement to agree with each other is enough to talk to parties. Also, the prospect that a third to the dispute will be involved is little alluring that parties make every effort to negotiate among themselves to get out of the conflict. Also it happens that after a first conciliation meeting parties decide to acquiesce in the situation, because they feel that the time and energy that requires mediation is in no proportion to the burden. They prefer to leave the dispute what it is.

If another solution modality did not result in a solution the schedule is helpful as a guide in determining which way parties might want to proceed. The goal is a final solution, a solution that is sustainable and a solution that parties wants to execute and propagate.

Parties are equivalent to each other and are equally well able to negotiate with the other? If that is the case, the choice for mediation or conciliation is obvious. However, if there is a big power differential between parties than the parties may have more confidence in the choosing for a court proceeding or arbitration. Also an obviously role are the cost involved with different modalities. Not everyone has the financial capacity to pay for a mediator, arbitrator or judge. Moreover, going to court is time consuming and that is often a factor that increases costs. Points to consider are, finally, whether the parties want to be sure there is a solution to the dispute, whether or not they wish to follow the formal procedure and how compelling they settle down themselves. In mediation and conciliation it is not sure that a solution is reached, an arbitrator and a judge will always judge. The mediation procedure is the least formalized. For mediation is also counts that no formal procedure exist outside the formal safeguards laid down in the mediation agreement. The degree of formality is stronger in arbitration. The most formal procedure is submitting the dispute to the court. Not only breathes the decorum of court formality, also the necessary assistance of lawyers increases the official nature of this method of dispute resolution.

Court-annexed mediation

Of course good mediation leads to a chosen solution that all parties put in practice. However, sometimes the solution is attractive but there remains doubt about the execution of future commitments. In that case it would be unfortunate if the mediation fails just of the uncertainty. A ratification by a judge of the creative solution in mediation would be a better option. In that case the court can make a an executionable settlement with implementation of the mediation agreement.

Although the aim of mediation is to reach a settlement for all concerned for the best execution involves future, it may be that there is a need for enforceability. In other words, it may be desirable in the future, without a new intervention of the thirds parties the other party is stimulated, to put the agreed solution in practice. Just as when entering into an agreement with the negative scenario, it may be useful for the judge to pronounce his blessing on the creative solution contained in a settlement reached in mediation. There are two modes for this show. Both the way of record of the appearance as inclusion in a judgment of the settlement is to consider. Alternatively we can also think of commitment to a deed.

Options to empower the settlement agreement.
The settlement agreement can be filed in a report of a court hearing where parties declare that they will now and in the future committed to execute the fulfilling the agreements.
Another option is to include the agreements in a juridical judgment. In many jurisdictions the Act gives a provision that enforceable execution is incorporated in the verdict. In contrast to inclusion in an official report, the judgment has the restriction that a judgment may only be included what the lawyers have officially demanded when starting the procedure.
Finally, we mention the possibility that the settlement agreement will be put into a deed record.The law provides that a deed may have the same enforce-ability as a judgment of a court. This is true both as an alternative to a court summons-like application procedure.The disadvantage of a notarial deed is that additional charges for fees of the solicitor is expected. Together with the positive effect of the intrinsic permissiveness of court-annexed mediation, parties are not committed to anything until the settlement is ratified. This is possible if there is a good interaction between mediation and court.

It is important that the stability and the needs of the parties at a specific moment in time are well estimated. Not only the solution modality is of importance, also the choice of the individual professional conflict-handler has an important role.

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